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No winners in Schiavo case

By Doug Bandow - posted Thursday, 24 March 2005

The US Congress held a very unusual weekend vote to save, at least temporarily, the life of Terri Schiavo, who otherwise would slowly starve to death at the Florida hospice in which she is confined.

Terri collapsed in 1990, leaving her profoundly cognitively disabled. Michael Schiavo, her husband, won a $US1.3 million malpractice judgment that included money for her medical care, which he subsequently refused to fund. Along the way he moved in with a woman and had two children. Seven years ago he petitioned the court to remove Terri's feeding tube. He was finally freed to do so on Friday.

Now Congress has passed, and President George W. Bush has signed, legislation allowing the federal courts to review her case. Nothing about it is simple.


The right to die. Virtually no one disputes Terri's right to decide whether to live or die. The problem is, we don't know what she would decide. According to Michael, Terri said she wanted "no tubes". His brother and sister-in-law back his claim, but no one else in her family heard her talk that way. Michael conveniently didn't note her alleged sentiments when requesting money for her rehabilitative care. Further, a former girlfriend says that he admitted that he and Terri never talked about the issue.

Permanent vegetative state. Although Terri is disabled, she may not fit the classic definition of someone typically left to die. Florida law defines a vegetative state as "the absence of voluntary action or cognitive behaviour" and "an inability to communicate or interact purposefully with the environment". Yet video clips filmed by her family suggest that Terri responds to visitors and events.

Some experts have dismissed the significance of her actions, but neuropsychologist Alexander Gimon concluded that they "are completely inconsistent with a diagnosis of [a] vegetative state". Jay Wolfson, appointed by the court as a guardian at law, argued that she had a "distinct presence" and was responsive to her family. Neurologist William Hammesfahr is equally emphatic: Terri is "alert and responsive to her environment". Hammesfahr, who has aided people with chronic brain injuries, argues: "There are many approaches that would help Terri Schiavo."

Looking after the interests of Terri or Michael? "Michael Schiavo has not been a model husband," observes New York commentator Deroy Murdock. There are claims by Terri's family about his violent nature and questions about the circumstances of her collapse. There are his girlfriends and children with his present live-in. There is his failure to fund rehabilitative care that some doctors say could be effective and his reported comments on how he planned to spend the almost $US1.6 million legal judgment theoretically won for Terri. And there is his extraordinary question to nurse Carla Iyer: "Can't you do anything to accelerate her death?" Iyer, with no apparent stake in the case, says Michael also asked: "When is that bitch going to die?"

Federal-state conflicts. Traditionally, the Republican Party has advocated giving states maximum autonomy to decide issues within their borders. Towards that end, the Republican Congress restricted federal death penalty appeals from state courts. Yet the emergency legislation grants a federal district court in Florida jurisdiction over withholding food from Terri. The provision is limited, but it allows national jurists to trump the Florida courts.

Republican grandstanding. Without doubt, many Republican politicians believe that an injustice has been done to Terri and her family. Yet they are not above using the issue for political advantage. A memo distributed to Republican senators characterised the case as "a great political issue", especially useful in winning support from conservative Christians. It "is a tough issue for Democrats", exulted the memo writer. Ironically, while governor of Texas, Bush signed into law a bill allowing hospitals to end life support if the patient had no means to pay for further care, and further care was thought to be futile.


What will federal judges do? Lawsuits have ranged up and down Florida courts for years. The federal fight could be equally bitter. Terri's parents will seek to reinsert the feeding tube until the case is decided. Michael will push to void the law as unconstitutional. If the court sustains the law, it is likely to hold a hearing on her parents' claim that removing the feeding tube violates her rights. The losing party then will inevitably appeal, as in Florida.

The Schiavo case won't be decided any time soon. There seems to have been a serious miscarriage of justice at the state level. But that bad decision has resulted from the normal operation of the rule of law. Thus, as a matter of principle - principle normally embraced by Republican legislators and presidents - the national government should stay out of the case. Setting the precedent of intervening in the very personal legal case of one family is likely to end up doing more harm than good. But there is a simple way to end the legal wrangling. Transfer Terri to the care of her parents and let Michael get on with his life.

There's nothing simple about the case of Terri Schiavo. Whatever happens next, the interruption of her young, vibrant life will remain a tragedy.

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First published in The Australian on March 22, 2005.

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About the Author

Doug Bandow is a senior fellow at the Cato Institute in Washington.

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